Delhi District Court
Sh. V.S. Randhawa vs Mr. N.S. Mathew on 19 March, 2009
1
IN THE COURT OF SHRI GIRISH KATHPALIA;
PRESIDING OFFICER, LABOUR COURT XIX
KARKARDOOMA COURTS:DELHI.
LIR NO. 467/06
SH. V.S. RANDHAWA
S/o LATE SH. J.S. RANDHAWA
R/o RZ603, GALI NO.16,
RAJ NAGARII, PALAM VILLAGE,
NEW DELHI110045 ........WORKMAN
vs
1.MR. N.S. MATHEW
DEPUTY MANAGING DIRECTOR
M/s GROUP 4 SECURITAS LTD.
N.H. 8, 424/25, MAHIPAL PUR,
DELHI
2.MR. SANJEEV TYAGI
OPERATION MANAGER,
U.S. EMBASSY, SHANTI PATH,
CHANAKYAPURI,
NEW DELHI ........MANAGEMENT
Date of reference: 29.05.2002
Date of taking up the matter for the first time:21.01.2008
Date of conclusion of arguments:05.03.2009
Date of award:17.03.2009
Ref.No. F.24 (4452)/2001/Lab/705559 dated 29.05.02
AWARD
1. On being satisfied as regards existence of an industrial
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dispute between the parties, the Secretary(Labour)
Government of NCT of Delhi in exercise of powers conferred by
section 10(1)(c) and section 12(5) of the Industrial Disputes Act
referred the present dispute to the Labour Court V for
adjudication, from where it was transferred to this court with
the following terms of reference:
"Whether the services of Sh. V.S. Randhawa,
s/o Late Sh. J.S. Randhawa have been
terminated illegally and/or unjustifiably by
the management and if so, to what sum of
money as monetary relief along with
consequential benefits in terms of
law/government notification and what
other relief is he entitled and what
directions are necessary in this respect?"
2. Upon service of court notice, workman filed a statement
of claim, seeking reinstatement of his services with the
managements with continuity and back wages. As pleaded by
workman, he was appointed as Security Guard/Sector Officer
with the management no.1 (M/s Group 4 Securitas Ltd.) on
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01.09.90 and his last drawn monthly basic salary was Rs.2521/.
After appointment, workman was posted in the premises of US
Embassy, the management no.2. On 19.03.01, management
no.1 terminated services of the workman illegally, without
assigning any reason. Despite service of demand notice dated
03.10.01 and intervention of labour authorities, managements
did not reinstate services of the workman. Hence this
reference.
3. Managements filed a common written statement before
my ld. predecessor, denying the pleadings of the workman.
Managements pleaded that the claimant does not fall within
the definition of "workman" under Section 2(s) of the Industrial
Disputes Act as he was working as Sector Officer and was
performing supervisory and administrative duties at US
Embassy, a client of management no.1 security provider. On
the night of 16.03.01, workman was posted outside the ACSA
gate of US Embassy but was found missing from the post at
3:35am by the inspecting team of the managements. After
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about 10 minutes when the inspecting team returned to the
post, they found the workman present without proper uniform
and unaware about the vehicle checking mirror. In view of this
careless lapse on the part of workman, the US Embassy
directed the management no.1 to replace the workman
immediately. Management no.1 immediately withdrew the
workman from US Embassy and directed him to report at their
regional office in Delhi for fresh deployment. But workman
refused to report for fresh deployment despite repeated advice
of the management no.1. As per managements, the workman
abandoned his job by absenting himself unauthorisedly with
effect from March 2001.
4. Workman filed a detailed rejoinder to reaffirm his claim.
Workman denied that he was performing administrative or
supervisory duties. Workman denied that there was any
inspection ever, in which he was found missing from his post.
Workman also denied having been advised to report for duty at
Regional Office. Workman denied having abandoned his job.
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5. My ld. predecessor framed the following solitary issue:
"1. As per terms of reference".
6. In support of his case workman appeared as his solitary
witness while four witnesses were examined from the other
side. I have heard authorised representative for managements
and the workman in person and also perused the record. It
would be appropriate to record that when despite repeated
adjournments, authorised representative for workman had not
been appearing, workman expressed desire to address
arguments personally. My issuewise findings are as under:
ISSUE NO.1
7. Workman stepped into the box as WW1 to depose on
oath contents of his pleadings and placed on record the
relevant documents as Ex. WW1/16. In his cross examination,
workman proved on record his appointment letter Ex.
WW1/M1 and his letters addressed to the management as Ex.
WW1/M2&M3. He stated that as Sector Officer he used to be
deputed for patrolling, checking of vehicles and manning of
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various check posts. About 30 guards used to work with him as
per the workman. But as Sector Officer, he could neither post a
guard nor give any instruction to any of the guard. In cross
examination, workman admitted that a night check had been
conducted while he was posted at ACSA gate of US Embassy by
the Operations Manager and his team but he denied that he
was found missing from the post. He admitted that the raiding
team took away the vehicle checking mirror but the same was
not noticed or objected by him. Workman admitted that he
had been transferred out of US Embassy and stated that he
went to join duty at Head Office but was not allowed to join.
He also admitted that vide letter dated 10.04.01 Ex. WW1/M4
he had been called upon by the management to report for duty.
Workman admitted that due to his security lapse, disastrous
consequences could occur at US Embassy.
8. Investigator of US embassy appeared as MW1 and
deposed that on 16.03.01 he alongwith three others conducted
a surprise night check at the US Embassy but could not find the
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workman at his post. The inspection team took away the
vehicle checking mirror from the gate and returned after ten
minutes, when they found the workman present at the post.
But workman was not aware that his mirror had been taken
away by someone. This lapse was informed to the regional
security officer of the embassy who sought replacement of the
workman. In cross examination MW1 admitted that no
enquiry was conducted by the management.
9. Assistant Manager (Personnel) of management no.1
appeared as MW2 to depose on oath the above mentioned
contents of their pleadings and placed on record the relevant
documents as Ex. MW2/16. His cross examination was
deferred at request of workman but thereafter MW2 left the job
of management no.1 and never returned. My ld. predecessor
allowed examination of another witness RP Manager as MW3.
Even MW3 did not appear for his crossexamination which had
been deferred at request of workman as he also left the job of
management no.1. Finally, Assistant Personnel Manager of
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management no.1 was examined as MW4.
10. MW4 in his testimony placed on record the relevant
documents as Ex. MW4/14. In cross examination, MW4
admitted that there is no board resolution or power of
attorney authorising him to depose on behalf of
management. He admitted that he had no personal
knowledge about the incident that took place on 16.03.01.
11. No other evidence was adduced.
12. Workman argued that his services were terminated
by the management on 19.03.01 and thereafter management
made him run from one office to the other. He explained that
management used to take from him 12 hours duty, without any
break for 15 days at stretch and there was not even a chair to
sit. Contrary to his entire case, workman in his oral address
stated that he had gone to fetch water at the time of surprise
inspection. Workman alleged that even the inspecting team
was drunk. Workman further alleged that managements
transferred his services on 10.04.01 only after getting to know
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that he had filed claim before conciliation officer on 04.04.01.
Even in head office, management did not take him on duty.
13. On behalf of managements it was argued that
workman admitted in his cross examination that he was Sector
Officer while serving the managements, as such he falls beyond
the scope of Section 2(s) of the Act. It was argued that
workman had to be transferred out of US Embassy in view of
his security lapse. It was further argued that strictly speaking it
was not even a transfer but mere shifting of the place of work
which the management was authorised to do under Clause 2
(viii) of appointment letter Ex. MW4/1.
14. Management placed reliance on the judgments of
JOHAN JOSEPH KHOKAR vs B.S. BHADANGE & ORS. 1998 LLR
213; G.S. KHAIRKAR vs M/s CAMLIN LIMITED 1998 LLR 119;
HUSSAIN MITHU MHASVADKAR vs BOMBAY IRON AND
STEEL LABOUR BOARD & ANR. 2001 II LLJ; DIAMOND TOYS
CO (P) LTD. vs TOOFANI RAM & ANR. 2006 (108) FLR 1032;
M/s TRINA ENGINEERING CO (P) LTD vs SECRETARY
LIR NO. 467/06 Page 9 of 25 pages
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(LABOUR) AND ORS 2006 (108) FLR 1032; THANKER SINGH
RAWAT & ORS vs JAGJIT INDUSTRIES LTD. 2006 LLR 18;
KENDRIYA VIDYALAYA SANGHATHAN AND ANR. Vs S.C.
SHARMA 2005 LLR 275; HRIDAYANAND vs G.P. STORES,
ALLAHABAD AND OTHERS 1996 LLR 433; JINDARSING BAHRA
vs GARGO MOTORS LTD. 2006 LLR 1105. ROLSTON JOHN vs
CENTRAL GOVT., 1995 SUPP. (4) SCC549; RATTAN SINGH vs
UOI, 1997 11SCC 396; GDA vs ASHOK KUMAR, (2008) 4 SCC
261; UPSB CORP.LTD. vs UDAY NARAIN, 2006 1 SCC 479; and
HSEDC vs MAMNI, 2006 9 SCC 434.
15. Whether or not the workman was guilty of misconduct
of being found missing from his post does not fall within the
scope of consideration in this case. It is nobody's case that
services of the workman were terminated by the management
by way of punishment for the alleged misconduct. However,
the incident of surprise inspection in which workman was
found missing from his post gains relevance as a circumstance
pointing towards abandonment, as per management. What is
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to be decided in the present case is as to whether the claimant
falls within the definition of "workman" under Section 2(s) of
the Act and if so, whether the workman abandoned his job or
his services were terminated.
16. So far as the status of the claimant as a workman is
concerned, as per settled legal position, nomenclature of the
post held by an employee is not relevant; what is to be seen is
the nature of primary duties of the employee. Merely because
the claimant was designated as Sector Officer, he cannot be
pulled out of the provisions under Section 2(s) of the Act, if
there is no other evidence to establish that he was performing
supervisory or administrative functions.
17. In the case of JOHN JOSEPH (supra) relied upon by the
management also, the Hon'ble Bombay High Court held that in
order to hold that an employee was performing supervisory
functions, what is to be seen is as to whether he possesses
power to assign duties to those employees who were working
on lower ladder in hierarchy and whether his principal job is to
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oversee the work of his subordinates. In the present case,
workman specifically stated in cross examination that he was
not giving any instructions to the guards and had no power to
post a guard.
18. In the case of GS KHAIKAR (supra), there was clear
evidence on record that the assistant security officer of that
case had been posting the security guards, taking rounds of the
premises to ensure that guards were doing their duty, filling the
attendance registers and not being a part of workers' wage
settlement. In the present case, duties of the workman even as
per the management did not include posting of the security
guards and conduct of inspection visits etc.
19. In the case of HUSSAIN MITHU (supra) also the
inspector was held workman only on the basis of his primary
duties as laid down in the relevant statute.
20. As reflected from material on record discussed above,
job of the workman was patrolling, checking of vehicles and
manning various check posts. 30 guards were working "with
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him" and not "under him" as per workman. Workman could
not post a guard and could not issue any instruction to a guard.
Despite these facts having come up in cross examination of
workman, no evidence was adduced by management as
regards primary duties of the workman. Even the appointment
letter Ex. MW4/1 fails to throw any light on the specific duties
earmarked for the workman. Evidence on record in the form of
testimony of the workman clearly establishes that he was
engaged in manual work only.
21. In view of above discussion, it is held that the claimant
falls within the definition of "workman" under Section 2(s) of
the Act.
22. Then comes the question as to whether services of the
workman were illegally terminated, as claimed by him or
whether he abandoned his job on being shifted out of US
Embassy, as claimed by the management.
23. In the case of GT LAD vs CHEMICAL FIBRES OF INDIA,
AIR 1979 SC 582, Hon'ble Supreme Court framed a specific
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question as regards true meaning of the expression
abandonment of service" and held as under:
"In the Act, we do not find any definition of
the expression "abandonment of service".In
the absence of any clue as to the meaning of
the said expression, we have to depend on
meaning assigned to it in the dictionary of
English language. In the unabridged edition
of Random House Dictionary, the word
"abandon" has been explained as meaning
to leave completely and finally; forsake
utterly, to relinquish, renounce, to give up
all concern in something. According to the
Dictionary of English Law by Earl Jowitt
(1959 edition) "abandonment" means
"relinquishment of an interest or a claim".
According to Blacks Law Dictionary
"abandonment" when used in relation to an
office means "voluntary relinquishment". It
must be total and under such circumstances
as clearly to indicate an absolute
relinquishment. The failure to perform the
duties pertaining to the office must be with
LIR NO. 467/06 Page 14 of 25 pages
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actual or imputed intention, on the part of
the officer to abandon and relinquish the
office. The intention may be inferred from
the acts and conduct of the party, and is a
question of fact. Temporary absence is not
ordinarily sufficient to constitute as
"abandonment of office".From the
connotations reproduced above it clearly
follows that to constitute abandonment,
there must be total or complete giving up of
duties so as to indicate an intention not to
resume the same................. Abandonment
or relinquishment is always a question of
intention, and normally, such an intention
cannot be attributed to an employee
without adequate evidence in that behalf".
24. In the case of SONAL GARMENTS vs TRIMBAK
SHANKAR KARVE, 2003 LLR 5, Honble Bombay High Court
held that where an offer of reinstatement of services was not
accepted, the workman is not entitled to an award of
reinstatement and back wages since such a conduct of the
LIR NO. 467/06 Page 15 of 25 pages
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workman lends support to the version of the management that
he had abandoned the employment. It was held that whenever
the management offers to reinstate the workman at any stage
of the proceedings, the workman must first accept the offer and
get reinstated in the employment and thereafter continue to
contest for the relief of back wages if any.
25. In the case of DIAMOND TOYS COMPANY(P) LTD vs
TOOFANI RAM, WP(C) 4501/04, decided by Hon'ble Mr. Justice
S.N. Dhingra of the Delhi High Court on 07/02/07(published on
the website www.delhihighcourt.nic.in), the Hon'ble High
Court dealt with challenge to an award passed by the labour
court observing that in case the workman had been running
absent, the management should have conducted an inquiry
and since the same was not done and also because
management did not place on record any letter to show that
duties were offered to the workman, the retrenchment was
illegal. Hon'ble Delhi High Court set aside the award passed by
the labour court, observing thus:
LIR NO. 467/06 Page 16 of 25 pages
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"It is commonly known that a person, who is
working in the industry keeps on trying for
better jobs and better opportunities. The
moment he gets better job, he is free to leave
his previous employer. The industrial law
does not require him to pay any
compensation to the employer while leaving
his job, as the industrial laws require an
employer to pay retrenchment
compensation when employer wants to
terminate the workman. Thus, there are no
fetters on the workman on leaving the job
while there are fetters on the employer in
terminating the service of an employee. If a
workman leaves his job all of a sudden and
stops attending the workplace of the
employer, Industrial Dispute Act does not
put any obligation on the employer to call
back the workman and request him to come
and join his duties. Such a request can be
made by the employer only when employer
considers that a useful workman should not
leave the job or where a workman is
LIR NO. 467/06 Page 17 of 25 pages
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governed by certain rules and regulations
under State employment and the employer
is supposed to hold an enquiry under the
service rule before termination of service of
an employee. Where the workman is free to
leave and join another employer without
even a notice and without obtaining a no
objection from his employer, the employer
cannot be compelled to call such a
workman for joining the duties or to
conduct an enquiry into the absence of the
workman and then terminate his services.
Leaving the services of an employer by the
workman is a valid mode of his
abandonment and there is no illegality
attached to a workman leaving the services
of his previous employer and joining
another employer. If the employer does not
consider the abandonment of service or
leaving the service by a workman as a
misconduct, the law cannot force the
employer to consider such abandonment as
a misconduct and hold an enquiry.
Misconduct of an employee is the one which
LIR NO. 467/06 Page 18 of 25 pages
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an employer considers as the misconduct.
An enquiry is required to be held only where
an employer intends to impose punishment
on the employee for an alleged misconduct.
If an employer does not intend to impose
any punishment on the employee and
considers that if the employee has left his
services, let it be so, the law cannot compel
the employer to hold an enquiry and punish
an employee for the misconduct. I consider
that it was not necessary for the employer to
hold an enquiry into the abandonment of
the service by the respondent. It was for the
respondent to prove that his services were terminated for some reasons by the employer or without any reason by the employer. The respondent had taken a stand which was found to be false. Under these circumstances, the Labour Court's conclusion that it was a case of retrenchment is perverse".
26. In the case of COMPETITION PRINTING PRESS vs JAI LIR NO. 467/06 Page 19 of 25 pages 20 PRAKASH SINGH, 2001 II LLJ 1341, Hon'ble Bombay High Court and in the case of SANKARANARAYANAN, P.I., ERNAKULAM vs SPICES BOARD KOCHI, 1999 II LLJ 592, Hon'ble Kerala High Court held that abandonment of service is a question of intention which has to be gathered from conduct of the employee.
27. In the case of TRINA ENGINEERING COMPANY(P) LTD SECRETARY(LABOUR) LLJ 2006 307 Delhi, Hon'ble Delhi High Court observed that if letters were dispatched at the last known address of the workman, the labour court could not have observed that the management has failed to show that the letters were addressed at correct address as any letter addressed by the employer to the workman at the address given by the workman would be deemed to be proper service of the letter.
28. In the case of PARSHURAM SHAH vs GOVERNMENT OF NCT OF DELHI, 2008 LLR 256, Hon'ble Delhi High Court observed thus:
LIR NO. 467/06 Page 20 of 25 pages 21 "A perusal of the evidence tendered by the petitioner workman by way of his affidavit shows that he has not stated therein that he had gone to the office of the respondent management after 13th February, 2003 to join duties. It has also not been explained as to why he remained quiet for a period of one month before making a complaint to the Assistant Labour Commissioner on 11th March, 2003. A perusal of the records further reveals that the petitioner workman did not cross examine the management's witnesses on their statement that he was offered to be taken back in service even during the conciliation proceedings. Thus the stand of the respondent management that the petitioner workman had abandoned his job voluntarily remained unrebutted."
29. In the case of STATE OF HIMACHAL PRADESH vs PRESIDING JUDGE, 2006 LLR 1020 Hon'ble High Court of Himachal Pradesh observed thus:
".....expression 'voluntary retirement' in LIR NO. 467/06 Page 21 of 25 pages 22 clause(a) of section 2(oo) of the Act, would indisputably include abandonment of job by an employee. In common law, an inference can be drawn from the length of absence from duty and surrounding circumstances that the workman relinquished his or her job voluntarily. The contract of service, I hardly need to emphasise, comes to an end when the workman abandons the job. Even though 'abandonment of service' is not defined in the Act, yet abandonment would mean to 'leave completely and finally'. In other words, voluntary retirement would include relinquishment of the work by a workman completely and finally which has to be gathered from circumstances in each case. The presumption of abandoning the job can validly be raised from long absence without leave or information to the employer."
30. Falling back to the present case, workman in his cross examination proved his letter Ex. WW1/M2 whereby he LIR NO. 467/06 Page 22 of 25 pages 23 tendered apology for his act of misconduct and assured not to repeat the same. In the said letter Ex.WW1/M2 workman admitted that at the time of inspection, he had gone to fetch water. In cross examination workman stated that he had been compelled to write this letter, for which he had lodged complaint Mark WW1/7 with the police. But the said police complaint nowhere alleges that workman was forced to write apology letter Ex. WW1/M2.
31. Workman admitted having written reply Ex.WW1/M3 to the management's letter Ex. WW1/M4, wherein it was alleged that he disobeyed the instructions of management to report back at the regional office for fresh deployment. Workman admitted in his cross examination that he had been transferred out of the US Embassy. But there is nothing on record to show that workman reported for duty at the office of management no.1 or even US Embassy ever subsequent to 16.03.01.
32. Workman admitted that vide letter Ex. WW1/M4 management had called him upon to report back on duty.
LIR NO. 467/06 Page 23 of 25 pages 24 There is nothing on record to corroborate his bald assertion that he had gone back to report for duty but was not allowed to join. Neither in his pleadings nor in evidence did the workman give any specific date or even month when he went to report for duty but was not taken in.
33. Most importantly, as per workman's own case, his services were terminated by the management on 19.03.01 and for the first time he challenged the same by way of complaint Ex.WW1/1 dated 10.08.01. Even if it is ignored that there is no evidence to show that complaint Ex.WW1/1 was actually lodged with the authorities on 10.08.01, there is absolutely nothing on record to explain as to what prevented the workman for a period of five months from challenging his alleged termination. Even the demand notice Ex. WW3/1 was issued after an unexplained delay of seven months on 03.10.01. This unexplained silence of the workman for more than five months is a significant pointer that he abandoned his job, dissatisfied with his ouster from US Embassy as reflected from LIR NO. 467/06 Page 24 of 25 pages 25 his letter Ex. WW1/M3.
34. Then, although witnesses of the management were cross examined at length, their testimony as regards abandonment of services by the workman remains unchallenged.
35. In view of above discussion, issue no.1 is decided against the workman and it is held proved that it is the workman who abandoned his job and it is held not proved that services of the workman were terminated by the management illegally and/or unjustifiably.
RELIEF
36. In view of above findings, it is held that workman is not entitled to any relief against the management.
37. Reference accordingly stands answered. Copies of this award be sent for publication and file be consigned to records. ANNOUNCED IN THE OPEN COURT ON 17th MARCH 2009.
(GIRISH KATHPALIA) ADDITIONAL DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER, LABOUR COURTXIX, KARKARDOOMA COURTS, DELHI.
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